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Docket Number

Crim. No. 62-154-J.

Attorney(S)

W. Arthur Garrity, Jr., U.S. Atty., Thomas P. O'Connor, Asst. U.S. Atty., for the United States. Stuart Macmillan, William A. King, Haussermann, Davison Shattuck, Boston, Mass., for defendant.

Judges

Anthony Julian

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Smart Summary

United States v. Braxton S. Elliott, Crim. No. 62-154-J (D. Mass. Oct. 24, 1962)

Factual and Procedural Background

The defendant was charged with making, without lawful authority, a mold for coining half-dollars and with counterfeiting several coins. He moved to suppress as evidence certain molds, coins, admissions, a letter, and a statement on the ground that they were obtained illegally.

The factual findings at the suppression hearing, as stated by the court, are:

An anonymous person turned over to the Post Office Department a letter that purportedly had been opened by mistake; a counterfeit coin mailed by the defendant to a woman in Yuma, Arizona, was enclosed. A Post Office inspector resealed the letter and delivered it to the addressee. The Boston Secret Service office later received the letter and coin.
Special Agent Andrew Daigle of the Secret Service investigated, discovered a possible connection in the Secret Service master index between the defendant and a federal fugitive, and discussed the matter with an Assistant U.S. Attorney but received no counsel on whether to apply for a search warrant.
On February 20, 1962, Daigle went to Springfield to seek further evidence. He notified local police and asked for assistance. Sergeant Ligarski applied for and obtained a state search warrant after swearing a complaint that stated only his belief that counterfeit coins and related materials were concealed at the defendant's premises; no supporting facts were included in the affidavit.
The warrant authorized entry "in the day time, or night time."
That evening, after dark, Daigle, Ligarski, and two detectives went to 114 Wilcox Street. The defendant's younger brother opened the front door and invited them in after they identified themselves. The defendant then admitted making coins, produced eleven counterfeit coins from his bedroom and two molds from the cellar, and permitted the agent to take them. Agent Daigle then placed the defendant under arrest.
At police headquarters the defendant was booked, fingerprinted, and photographed (about 8:00 p.m.). He was interrogated by Agent Daigle alone until about 10:00 p.m., during which a written statement was prepared and later signed by the defendant in Ligarski's presence.
Agent Daigle did not present the defendant to a United States Commissioner until the following morning (about 10:00 a.m.); Daigle explained he delayed contacting the Commissioner because he "wanted to take a statement and prepare the thing in an orderly fashion."
Sergeant Ligarski's return on the search warrant stated that the search "became unnecessary in view of the occupants [sic] permission to enter and search" and noted Special Agent Daigle's attendance.

Legal Issues Presented

Whether federal standards (Fourth Amendment and Rule 41(c) of the Federal Rules of Criminal Procedure) govern the validity of a search and seizure when a federal agent uses local police to accomplish a federal investigation.
Whether the state-issued search warrant (and the affidavit supporting it) satisfied the Fourth Amendment and Rule 41(c) requirements.
Whether the defendant's apparent cooperation and statements at his home constituted voluntary consent that would validate entry and seizure without a valid warrant.
Whether the search of the defendant's home was lawfully incident to his arrest.
Whether the arrest and subsequent detention and interrogation complied with federal procedural rules (including Rule 5(a)) and whether evidence obtained during that period is admissible.
Whether the letter and counterfeit coin that were initially opened by an anonymous person and later delivered through the mail should be suppressed as illegally obtained.

Arguments of the Parties

Government's Contentions

The government argued that the defendant consented to the search, rendering a warrant unnecessary.
The government contended the search was incidental to the defendant's arrest and therefore lawful.
The government explicitly stated it did not rely on information obtained from the letter (which had been opened without authority) to justify the defendant's arrest.

Defendant's Position

The defendant filed a motion to suppress, asserting that molds, coins, admissions, a letter, and a statement were obtained from him illegally. The opinion does not provide a more detailed description of the defendant's legal arguments beyond the suppression motion itself.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Pearce, 7 Cir., 1960, 275 F.2d 318	Affidavits for search warrants must recite facts and may not be based solely upon the affiant's belief.	Used to support the conclusion that Ligarski's affidavit, which stated only his belief, failed to establish probable cause under the Fourth Amendment and Rule 41(c).
Baysden v. United States, 4 Cir., 1959, 271 F.2d 325	Affidavits must recite facts rather than mere belief.	Relied on as additional authority that the affidavit in this case was insufficient to justify the warrant.
Giordenello v. United States, 1958, 357 U.S. 480	Affidavits must present sufficient factual basis and obey required procedures (as discussed in the opinion).	Cited to reinforce the principle that a warrant affidavit cannot rest solely on belief and must meet constitutional requirements.
Byars v. United States, 1927, 273 U.S. 28	A search prosecuted in violation of the Constitution is not made lawful by what it brings to light.	Applied to reject any suggestion that the discovery of federal crime evidence retroactively validated an unconstitutional search.
Amos v. United States, 1921, 255 U.S. 313	Submission to law-enforcement officers who claim authority (e.g., a warrant) is not necessarily voluntary consent to waive Fourth Amendment rights.	Relied upon to reject the government's consent argument where officers entered under color of a search warrant and the defendant had no reason to question its validity.
Johnson v. United States, 1948, 333 U.S. 10	Similar principle that apparent authority of officers and submission does not constitute an intentional and voluntary waiver of Fourth Amendment rights.	Used to support the conclusion that the defendant's acquiescence to officers who represented they had a warrant did not constitute valid consent.
Glasser v. United States, 1942, 315 U.S. 60	Every reasonable presumption will be indulged against the waiver of a fundamental right by one charged with crime.	Applied to emphasize the high burden on the government to show a voluntary waiver of Fourth Amendment rights.
Mallory v. United States, 1957, 354 U.S. 449	The police may not arrest upon mere suspicion but only on probable cause; also cited regarding prompt presentation to a magistrate under Rule 5(a).	Relied upon to conclude there was no probable cause to arrest the defendant as a fugitive and to support criticism of delay in presenting the defendant to a commissioner.
Upshaw v. United States, 1948, 335 U.S. 410	Rule 5(a) requires that an arrested person be taken without unnecessary delay before a commissioner to prevent secret interrogation.	Used to criticize Agent Daigle's delay in bringing the defendant before a Commissioner and to support suppression of statements obtained during that delay.

Court's Reasoning and Analysis

The court's analysis proceeded in a sequence tied closely to the facts found at the suppression hearing:

Federal standards applied: Because Agent Daigle, a federal agent, enlisted and used local Springfield police to accomplish his investigation, the court treated the entire operation as federal activity and held that federal constitutional standards (Fourth Amendment) and Federal Rule of Criminal Procedure 41(c) govern the validity of the search, arrest, and seizure.
Invalidity of the state warrant: The court concluded that the state warrant was defective under the Fourth Amendment and Rule 41(c) for several reasons drawn from the record:
- The affidavit sworn by Sergeant Ligarski stated only his belief that contraband was concealed at the defendant's premises and contained no factual recitation to support probable cause; the court relied on authority holding that an affidavit must recite facts and not rest solely on belief.
- The affidavit was not sworn to before a judge or a United States Commissioner as required by Rule 41(c), further undermining its validity.
- The warrant authorized nighttime entry, but under Rule 41(c) such authorization requires an affidavit that is "positive that the property is in the place to be searched"; the affidavit did not meet that standard.
Consent argument rejected: The court rejected the government's contention that the defendant consented to the search. The reasoning was that the officers entered "under color of their office and under color of a search warrant," and the defendant reasonably believed they had authority to enter and search; such submission is not the understanding, intentional, and voluntary waiver of Fourth Amendment rights required to constitute effective consent. The court invoked decisions establishing that courts will indulge every reasonable presumption against waiver of fundamental rights.
Search not justified as incident to arrest: The court found the arrest followed the unlawful search and was based on evidence discovered as a result of that search. Therefore, the government could not justify the search by later claiming it was incident to the arrest; to do so would improperly allow officers to validate an unlawful intrusion by relying on the fruits of that intrusion.
Arrest lacked probable cause as a fugitive arrest: The court noted the government did not rely on the illicitly opened letter to justify the arrest, and that Agent Daigle's reference to a possible fugitive connection in the master index did not amount to probable cause. Mallory was cited for the proposition that an arrest cannot be made on mere suspicion.
Noncompliance with federal procedural rules: The court emphasized Agent Daigle's failure to follow the federal rules—specifically Rules 3, 4, 5(a), and 41—highlighting that Daigle had time to apply for a warrant or arrest warrant but did not do so. The court criticized the agent's delay in presenting the defendant to the United States Commissioner, finding that the agent interrogated the defendant and took a signed statement before attempting to contact the Commissioner in violation of Rule 5(a). The court cited Upshaw and Mallory to underscore the rule's purpose of preventing secret interrogation.
Suppression remedy: Because the entry and search of the home, and the arrest and detention, were unlawful, the court determined that all property obtained in the defendant's home, the signed statement produced at police headquarters, and all admissions made by the defendant from the time of entry until presentation before the United States Commissioner the following day were illegally obtained and therefore must be suppressed.
Letter and enclosed coin: The court found the hearing evidence insufficient to decide whether the anonymously opened letter and the enclosed counterfeit coin should be suppressed; the government's position with respect to these items was not clear in the record. Consequently, the court denied suppression of those two items without prejudice to the defendant's right to object at trial.

Holding and Implications

CORE RULING: The Court held that the entry and search of the defendant's home, and the arrest and detention of the defendant, were unlawful, and therefore ordered suppression of specified evidence.

Specific orders and direct consequences:

Suppressed: All property obtained in the defendant's home (including the molds and coins seized there), the written statement signed by the defendant at police headquarters, and all admissions made by the defendant to federal agents or local police from the time they entered the defendant's home until he was brought before the United States Commissioner the following day.
Not finally suppressed (denied without prejudice): The anonymous letter and the counterfeit coin enclosed with it—suppression of these items was denied without prejudice to the defendant's right to object at trial because the evidentiary record was insufficient to resolve their admissibility.

Implications: The decision enforces federal Fourth Amendment standards and federal procedural rules when federal agents use local police to conduct investigations, and it underscores that defective affidavits, lack of proper swearing, nighttime entries without requisite factual support, involuntary-looking "consent" given in the face of officers representing they possess a warrant, and delays in presenting arrestees to magistrates can require suppression of evidence. The opinion does not announce or discuss any broader rule beyond its application of existing constitutional principles and cited precedents; its immediate effect is to suppress the specified evidence in this prosecution and to leave unresolved the admissibility of the letter and enclosed coin pending further development at trial.

Note: This summary is based exclusively on the contents of the provided opinion and does not add facts or interpretive material beyond what the court stated.

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UNITED STATES of America v. Braxton S. ELLIOTT

JULIAN, District Judge.

The defendant is charged with the offense of having made, without lawful authority, a mold for coining half-dollars, and with the additional offense of counterfeiting several coins.

He filed a motion to suppress for use as evidence certain molds, coins, admissions, a letter, and a statement on the ground that they were obtained from him illegally.

On the basis of the evidence presented at the hearing on the motion, I find the following facts:

An anonymous person turned over a letter to the Post Office Department stating that it had been opened by mistake and that a counterfeit coin had been found in it. The letter and the coin had been mailed by the defendant to a woman in Yuma, Arizona. After examining its contents a Post Office inspector resealed the letter and delivered it to the addressee. On February 18, 1962, the Boston office of the Secret Service received a report, together with the letter and counterfeit coin, from a Secret Service agent in Phoenix, Arizona.

The case was assigned to special agent Daigle for investigation. On checking the master index maintained by the Secret Service, Daigle found a reference to the defendant indicating that he might "possibly" be the same person as one Clinton Heinrich, a federal fugitive from justice who had been investigated a month previous. Daigle discussed the evidence with an assistant United States Attorney but was not counseled on whether he should apply for a search warrant.

On February 20, 1962, he went to Springfield, where he intended to call at the defendant's home for the purpose of finding additional evidence.

Upon arriving in Springfield he informed the local police that he was investigating a counterfeiting case in that city, that arrests might be involved, and that he would welcome assistance. He discussed the case with Sergeant Ligarski and stated that he had no search warrant. Ligarski told him that the regulations of his own department required police officers to take "every prior step." He further stated that on the basis of the information given him by Daigle he felt that grounds existed for the issuance of a search warrant. At Ligarski's request, Daigle accompanied him to the Clerk of the District Court of Springfield. A complaint on behalf of the Commonwealth of Massachusetts was subscribed and sworn to by Ligarski before the Clerk in which he stated only that he believed that counterfeit coins and the tools, machines and materials for making them were concealed on the premises occupied by the defendant at 114 Wilcox Street, Springfield. No grounds were stated for Ligarski's belief. The complaint concluded with a prayer for a warrant to search the premises for the items mentioned. A search warrant was issued authorizing Springfield police and certain other municipal, county, and state officers to enter and search the described premises "in the day time, or night time."

On the evening of the same day, Agent Daigle, Sergeant Ligarski, and two detectives went to the defendant's home at 114 Wilcox Street. They arrived there at about 7 p.m., after dark. Daigle and Ligarski went to the front door while the two detectives covered the rear door.

A younger brother of the defendant opened the front door, and after Agent Daigle and Sergeant Ligarski identified themselves as members of their respective agencies, the defendant's brother invited them in.

The defendant stepped forward from the bedroom and said, "What is this all about?" Agent Daigle replied, "It is about the coins." Thereupon Sergeant Ligarski stated, "We have a warrant." The defendant replied, "You don't need any warrant. I made the coins. I have got them right here in my stand in the bedroom."

The defendant led them into the bedroom and there gave them eleven counterfeit coins. He then took them down to the cellar and showed them two molds and told Agent Daigle that he could take them. The agent took them.

After gaining possession of the coins and the molds, Agent Daigle informed the defendant that the manufacturing of coins was illegal and thereupon placed him under arrest. Daigle then told the defendant that he would be taken to police headquarters, that he would be requested to make a statement, that he had a right to remain silent, and that he was entitled to notify anyone he wished.

They arrived at police headquarters at approximately 8 p.m. There the defendant was booked, fingerprinted, and photographed. This procedure lasted about a half hour. The defendant was then taken to a separate room where he was questioned by Agent Daigle until about 10 p.m. No other person was present. In the course of the interrogation Daigle prepared a statement which was later signed by the defendant in the presence of Ligarski.

There was a United States Commissioner in Springfield but Agent Daigle made no attempt to contact him until after he had finished interrogating the defendant and the statement was signed. The reason he gave for not attempting to get in touch with the Commissioner sooner was that he "wanted to take a statement and prepare the thing in an orderly fashion."

At about 10 p.m. he made a telephone call to the Commissioner's home. Receiving no answer, he made no further attempt until the following morning.

The defendant was brought before the Commissioner about 10 a.m. on the following day after being questioned by a Post Office inspector.

Sergeant Ligarski endorsed the following return on the search warrant: "Search of the within premises by virtue of this warrant became unnecessary in view of the occupants [sic] permission to enter and search. Special Agent Andrew Daigle of U.S. Treasury Dept. was in attendance."

It is obvious that the local police went into action in response to Agent Daigle's request for assistance, and that Agent Daigle used the local police to aid him in accomplishing the purpose for which he went to Springfield, namely, to obtain evidence of the violation of federal laws by the defendant. The activity directed at the defendant on February 20 was essentially activity of the federal government. A federal law-enforcement officer will not be permitted to by-pass the requirements of federal law by utilizing a warrant issued for his convenience to local officers under less exacting rules of state procedure. Therefore, federal and not state standards will be applied to determine the validity of the search warrant, the legality of the search and of the arrest, and whether the evidence sought to be suppressed was lawfully obtained.

The Court finds no basis for the government's claim that, by stipulation of the parties, the validity of the warrant was not to be an issue.

The warrant issued by state authority is clearly bad when tested by the Fourth Amendment and Rule 41(c) of the Federal Rules of Criminal Procedure. No facts were set out in Ligarski's affidavit which could reasonably satisfy a judge or a United States Commissioner that grounds for the issuance of a search warrant existed or that there was probable cause to believe that they existed. An affidavit for a search warrant must recite facts and may not be based solely upon the affiant's belief. United States v. Pearce, 7 Cir., 1960, 275 F.2d 318; Baysden v. United States, 4 Cir., 1959, 271 F.2d 325, 328; see also Giordenello v. United States, 1958, 357 U.S. 480, 485-486, 78 S.Ct. 1245, 2 L.Ed.2d 1503. It is not material that the search revealed evidence of a violation of federal statutes. A search prosecuted in violation of the Constitution is not made lawful by what it brings to light. Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520. The affidavit was not sworn to before a judge or commissioner as required by Rule 41(c). The search warrant purported to authorize entry into the described premises in the nighttime. Under Rule 41(c) a search warrant may authorize service in the nighttime only if the affidavit is positive that the property is in the place to be searched. The affidavit failed to meet this requirement.

The government contends that the defendant consented to the search and thereby dispensed with the necessity of a search warrant. The contention is rejected. Agent Daigle and Sergeant Ligarski obtained entry into the defendant's home under color of their office and under color of a search warrant. The defendant had no reason to question the validity of the search warrant. He had every reason to assume that the officers were acting under a valid search warrant. Orderly submission to law-enforcement officers who, in effect, represented to the defendant that they had the authority to enter and search the house, against his will if necessary, was not such consent as constituted an understanding, intentional and voluntary waiver by the defendant of his fundamental rights under the Fourth Amendment to the Constitution. Amos v. United States, 1921, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654; Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. Every reasonable presumption will be indulged against the waiver of a fundamental right by one charged with crime. Glasser v. United States, 1942, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680.

The government further contends that the search of the defendant's house was incidental to his arrest and therefore lawful. The evidence does not support this view. The arrest of the defendant followed the unlawful search and was based upon evidence obtained from the defendant as the result of the unlawful search. The government may not justify the arrest by the search and at the same time justify the search by the arrest. "An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion. Any other rule would undermine `the right of the people to be secure in their persons, houses, papers, and effects' * * *." Johnson v. United States, 1948, 333 U.S. 10, 16-17, 68 S.Ct. 367, 370, 92 L.Ed. 436.

The government explicitly states that it does not rely on the information obtained from the letter that was opened without authority to justify the arrest of the defendant. The arrest cannot be justified on the ground that he was a fugitive. Daigle did not base the arrest on that ground. In fact, there was no probable cause to believe that the defendant was a fugitive. There was merely an indication in the master index that the defendant might possibly be the same person as the fugitive. "The police may not arrest upon mere suspicion but only on `probable cause'." Mallory v. United States, 1957, 354 U.S. 449, 454, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479. No warrant for the defendant's arrest had ever been issued. Agent Daigle had ample time on February 19 and 20 to apply for a search warrant or warrant of arrest before a judge or United States Commissioner in Boston or Springfield, but did not do so. No attempt appears to have been made to comply with the procedures detailed in Rules 3, 4, 5(a), and 41 of the Federal Rules of Criminal Procedure. No reason was offered at the hearing for not obtaining a warrant in accordance with the Rules cited.

The entry and search of the defendant's home and the arrest and detention of the defendant were unlawful.

The agent also failed to comply with Rule 5(a) which requires that an arrested person be taken without unnecessary delay before the nearest available commissioner or other authorized officer. No attempt was made to do this until after the agent had interrogated the defendant and obtained a statement from him. The reason given for the delay was that the agent "wanted to take a statement and prepare the thing in an orderly fashion." The very purpose of the rule is to check resort by officers to secret interrogation of persons accused of crime. Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479.

The property obtained in the defendant's home, the signed statement of the defendant obtained at police headquarters, and all admissions made by the defendant to federal agents or local police officers from the time they entered the defendant's home until he was brought before the United States Commissioner on the following day were illegally obtained and are therefore ordered suppressed as evidence against the defendant.

The evidence presented at the hearing is insufficient to enable the Court to determine whether the letter and the counterfeit coin enclosed with it should be suppressed as evidence on the ground that they were illegally obtained. The position of the government with respect to these two items is not clear. Therefore, that part of the motion which seeks to suppress the letter and the enclosed coin is denied without prejudice to the defendant's right to object to their admission when they are offered by the government at the trial.

In the memorandum filed in opposition to the motion to suppress it is stated as follows: "The right to send mail first class and not have it opened, examined or pried into by unauthorized persons is guaranteed by the Fourth Amendment to the United States Constitution. Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878); reaffirmed in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Not only the Supreme Court of the United States but the Congress has exercised its authority in protecting the right of persons to be free in these matters. By act of Congress (now U.S.C. Title 18, Sec. 1702), it is a crime for any person to take from the mail before it has been delivered to the addressee any such letter with the intention to obstruct such correspondence or pry into the business or secrets of another. In this case the defendant's rights in this regard seem to have been violated by a person or persons unknown. It may also be inferred that the Government obtained information relating to the defendant as a result of these violations. * * * However, the Government does not rely upon this information to justify the arrest of the defendant."

UNITED STATES v. ELLIOTT, (D.Mass. 1962)